Blog Traffic

December 5, 2012

Seventh Circuit rejects extending Southern Union to restitution based on (minority) view it is not a criminal penalty

The Seventh Circuit handed down a panel opinion today in US v. Wolfe, No. 11-3281 (7th Cir. 2012) (available here), which
concludes with a lengthy discussion of whether Sixth Amendment rights recognized in Apprendi and applied to fines in Southern Union apply to restitution awards. Here is the heart of the ruling (with most cited removed):

The district court imposed a restitution order totaling
$3,028,011.29. Wolfe challenges this amount on the
ground that it was not supported by the jury’s factual
findings, a violation of the Sixth Amendment under
Apprendi v. New Jersey, 530 U.S. 466 (2000). Specifically,
he contends that the recent Supreme Court decision in
Southern Union Co. v. United States, ___ U.S. ___, 132 S. Ct.
2344 (2012), first, requires us to overturn our longstanding
jurisprudence that restitution is not a criminal
penalty, and second, mandates that all restitution
amounts be supported by the jury’s verdict....

Wolfe argues that his restitution order is similar to the
criminal fine in Southern Union because the order is a “lifelong
payment burden.” Yet, the only way Southern
Union may affect the outcome of this case is if we first
conclude restitution is a criminal penalty. (If so, the
issue becomes whether Southern Union’s holding that
Apprendi applies to criminal fines should extend to
another type of criminal penalty: restitution.) Reaching such a conclusion, however, would be in direct opposition
to this Circuit’s well-established precedent that
restitution is not a criminal penalty....

Having examined our sister circuits who have
addressed whether restitution is civil or criminal in
nature, we find ourselves in the minority. Only the
Eighth and Tenth Circuits, like us, have found restitution
to be civil in nature....

But a “compelling reason” is required to overrule our
Circuit’s precedent. Being in the minority is not enough.
This is true even if the trend is against us....
Wolfe’s only other arguments as to why we should treat
restitution as a criminal penalty are that the Supreme
Court referred to restitution as a “criminal punishment”
in Pasquantino v. United States, 544 U.S. 349, 365 (2005),
the restitution order is a “significant infringement
on [his] freedom,” and Apprendi should be “extended
broadly.”

We have already rejected the Pasquantino argument,
so that argument is unavailing. Likewise, whether a court judgment infringes
upon someone’s life does not make the judgment inherently
criminal.... And the degree to which Apprendi is extendedhas little value when answering the initial question before us: whether restitution is a criminal penalty. As we stated, Southern Union and the scope of Apprendi only come into consideration if we first conclude restitution is a criminal penalty. We decline to reach such a conclusion.

Wolfe has not provided us with a compelling reason
as to why the holding in Southern Union — or this case
in general — should be used as the vehicle to overturn
our long-standing Circuit precedent that restitution
is not a criminal penalty. The district court’s restitution
order was not required to be supported by the
jury’s fact-finding, and therefore, it did not violate
Wolfe’s Sixth Amendment rights.